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THIS ARTICLE WAS WRITTEN BY SANGRAM JAI SINGH A STUDENT OF N.I.U, NOIDA.
With the need to re-establishing uniformity and predictability of rules relating to the international carriage of passengers, baggage and cargo, a meeting of the International civil aviation organization which led to a multilateral treaty adopting the Montreal Convention in 1999.It amended important provisions of the Warsaw Convention’s regime concerning compensation on the regard of the victims of air disasters. The ambit of all international flights come within the Montreal Convention, where by a compensation is provided to the passengers next of kin in the event of an injury or death on board the flight. The basis of amount of damages must be, due to the establishment of liability from the flight-carrier( how-so-ever ), albeit the amount of damages is a matter of negotiation, with the insurers for the flight carrier, as in the event of such accidents caused with the intent of pilots, then the amount of damages would be offered less as compared to an accident caused due to mechanical failure.
In other words the passengers would receive the amount of damages depending on the origin of each passengers nationality , their law of the land will determine the same.
Under the Montreal Convention a fifth jurisdiction is provided to the victims family who may sue foreign flight carriers in the nation where they place their headquarters.
- Vicarious liability: The airline as a corporate entity would be liable by statute for accidents caused by the pilots acts or omission, albeit the liability is limited to 15,000 dollars (U.S) per person killed or injured, up to a total of 30,000 dollars.
- Negligence By the Airline: If the concerned airlines do not take the responsibility of maintaining the mechanics of their fleet of flight carriers as per regulations of the aviation administration , it would mean that the airline is in the position of responsibility even though the accident caused was on the basis of mechanical failure.
- Airlines responsibility to passengers if their plane crashes: The Montreal Convention Stipulates in furtherance to the value established by the International Monetary Fund that it is liable for up to 113,100 special “drawing rights” per passenger. Also art. 21 of the Montreal convention provides that if in any case the victims next of kin or family demands for higher damages than this limit, the airline can contest it, provided that the proof of such damages were not due to negligence or act or omissions by its pilots or on board staff or if such accident happened due to negligence or acts or omission of a third person, then the airline is not liable to pay the higher amount.
Who can be sued:
According to the Montreal Convention, the Airlines would be liable for paying damages.Albeit That doesn’t mean it would be the only one blamed.
According to Steve Dedmon, ( an aviation law expert and associate professor of Aeronautical Science at Embry-Riddle Aeronautical University) says parties involved in the manufacturing of the flight carrier can also be named in the lawsuit, as in, where the scenario of such accidents results from the proven fact that the cause of the accident was from negligence in manufacturing or design, which in other words demarcates that the victims next of kin can sue both the airlines and manufacturer.
Fact As Is:
The designated convention i.e the Montreal Convention provides for a better protection and claim of damages to the person availing such services from an airline, albeit this convention is applied only to whose nations who have rendered their approval by their sign and seal.Moreover this convention renders detailed provisions of the airline liabilities and what damages victims next of kin are rightfully entitled to in, case of death or injury to the victim. The Montreal convention also stipulates provisions on the passengers damage and delay of baggage and cargo of passengers.The montreal Convention demarcates that “The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”
Amount of damages in case of delay:
Subject to the provision of article 19 of the Montreal convention demarcates if there are any damages incurred to the passenger due to the fact of delay, the airlines are bound to pay 4,694 special “drawing rights” for each passenger , which is equivalent to 7,211 dollars as prescribed by the international Monetary Fund. In cases where the baggage has been destroyed or damaged the airline is bound to pay 1,131 special “drawing rights” for each passenger, which is equivalent to 1,740 dollars, such limits are subjected to be revised every five years. Thus the revision is based on the weighted average of the annual rates of increase or decrease in the price indices of the various countries. This is a major reason why the damages amount might vary due to the very fact that the victims family in an air crash are mostly of different nationalities,in other words the International monetary fund prescribes certain limits to those nations who are not part of the Montreal convention.
As for the matter where a final amount of damages is to be settled, will primary depend on the property and casualty cover the airlines have, which all depends on who the insurers are and who are the re-insurer of the airline.
In certain cases such as the Malaysia Airlines Flight 17 , reports suggested the crash in Ukraine was an act of war, thereby enabling the Malaysian Airliner to decline for making payments of some parts of the insurance on the said ground, however as per the insurance company, that was not the case , the zone where this flight was flying over was a safe zone, only post the crash was it declared a danger zone.
The very essence of this research is to provide the reader’s with the legal and critical analysis on the issues hugely debated on the topic of Aviation law. This research aims to supply the reader with the knowledge of the Montreal Convention that has helped in re-establishing uniformity and predictability of rules relating to the international carriage of passengers, baggage and cargo. Along with the liabilities of airlines and the passengers family right to sue for damages with the current facts and latest news on regard for the same.